HISTORY OF ADOPTION AND A LEGAL BEGINNING OF INTER – COUNTRY ADOPTIONS

This article was written by Harshita Tomar, a student of  Hidayatullah National Law University ,New Raipur.

Pranab Mukherjee said, “Children are the foundation on which a strong, vibrant, dynamic India shall be built”. They determine the future of the nation.   Having a child is the greatest bliss to a parent. Adoption appears to be the most efficient way to achieve this happiness. It emerges as the panacea to the plight of those who crave for children. Adoption can be the most beautiful solution not only for childless couples and single parent but also for homeless children. It enables a parent- child relationship to be established between people not biologically related. Adoption was considered a taboo until the introduction of the Guardians and Wards Act, 1890 and even now couples would prefer having their own children than adopting a child, only upon their unsuccessful attempts they resort to adoption. Fosterage, on the other hand, is still in its infancy in India coming into recognition only with the introduction of The Juvenile Justice Act of 2000. In India, till recently adoption as a legal concept was available only among the members of the Hindu community. Also, exception where personal laws permit such adoption for any section of the polity. A major chunk of the population could only act as legal guardians of the children. Historically, the religion- specific nature of adoption laws had reinforced practices that were inequitable to children and obstructed the shaping of the Uniform Civil Code as envisaged under Article 44 of the Constitution. The initiation dares back to 1890 under the Guardian and Wars Act, 1890, which through secular, made the child a ward, and not an adopted child. A major hindrance has been the personal laws of Muslims, Christians, Parsis and Jews, which do not recognize complete adoption. The scope of adoption was greatly narrowed down by Hindu Adoption and Maintenance Act, 1956, which provided for adoption of Hindu children by the adoptive parents belonging to Hinduism. The first seed of secular adoption law was sown in 2000 under the Juvenile Justice (Care and Protection) Act, 2000, under the umbrella of Rehabilitation and Social Reintegration (Chapter IV) and then taken forward under the amendment Act, 2006. The clarification guidelines came in 2007 with Central Model Rules, which specified the procedure that shall be abiding for adoption. Given its special status within the broad framework of child welfare programmed, adoption demanded a legislation that must either supersede or made compatible with the existing legislation. A whole chapter is now dedicated to Adoption in the current Amendment Act 2015, which is both secular and supersedes previous laws. Now, viewing the situation from the standpoint of legislation, being a secular act it is optimistic, hoping the Indian social perspective to be progressive enough to follow the new act, in place of their own personal laws.  It is still seen with apprehension. It has been believed that children are nations’ supremely important asset and a country’s future lies in their hands. To let this happen, development of children in a proper manner is very important. Unfortunately there are children who due to lack of proper care and love commit some offense at a very tender age. To protect them Juvenile Justice Act has been brought. Still there are children who are orphans, thus keeping in mind the welfare of such children provisions regarding adoptions of such children have been introduced in the Juvenile Justice Act of 2015.

            In India there are large number of orphans, surrendered and deprive children who are in need of care and protection. India being a signatory to UN Convention on Rights of Children. 1989 has given an express legal sanction to the principle of ‘welfare of child’. The principle signifies well- being, care, affection, education, secured future of child, which starts from child’s right of family. Justice P.N. Bhagwati has quoted- The c hild is  a soul with a being, nature and capacities of its own, who must be helped to find them, to grow into thee maturity, into fullness on physical and vital energy and most breadth, depth and height of its emotional , intellectual and spiritual being.

 Inter country adoption ( Henceforth addressed as ICA) in India was a vulnerable area which cried for immediate attention from legal and judicial segments. Until 2015, there was no legislation to govern ICA in India. The procedural rules regulating ICA were based on guidelines issued in various judgments of Supreme Court right from Lakshmi Pandey’s Case. These guidelines were adopted by central adoption resource authority (CARA) in regulating ICA. Despite of these prudently drafted rules it has resulted in serious abuse of the rights of the parties involved. Severe illegalities like baby selling, kidnapping children, forging or fabricating the relinquishment deeds and other documents to facilitate the necessary procedural formalities etc., have come into limelight. Various public interest litigations were filed in the Supreme Court calling for legal and judicial attention in this area. Hence, there was an urgent need to restructure these compact set of guidelines and rules to protect the interest of the parties.

            Juvenile Justice Act, 2015 came up as a sigh of relief to the parties, as it provides specific provisions regulating adoptions (In country and Inter country) under chapter VII. The act has given CARA the status of a statutory body to enable it to perform its functions more effectively. The act provides for the procedure of adoptions and also imposes punishment in case of no-compliance. Act regulate few other crimes like baby selling, illegal adoption , kidnapping of children for adoption etc., which are not adequately finding place in any other enactments included in the Act.

            But, Is the amendment in the act of 2015 is considered to be comprehensive enough in delaing with immigration issues which are frequently faced by the parents in Inter country adoptions? Moreover, the comprehensiveness of the act is uncertain, as it does not deal with the after adoption procedures in specific with respect to Inter country adoptions. Still this is a reformative approach brought by the Government of India for Inter country adoptions.